Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. Charles J. Koosed, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.). Super.Ct.No. J110983
Joanna Rehm, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Steve Oetting, Supervising Deputy Attorney General, and Robin Derman, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
King J.
After a contested dispositional hearing, the juvenile court found true an allegation that minor had committed arson of forest land. (Pen. Code, § 451, subd. (c).) On appeal, minor contends the court erred in denying his Welfare and Institutions Code section 701.1 motion to dismiss. Minor argues that at the close of the People’s case, there was not substantial evidence to support a true finding relative to the allegation of arson of forest land. He further submits that the court erred in admitting his friend Jacob T.’s out of court statement that he “was not a rat” as a prior inconsistent statement from his trial testimony. We disagree with minor’s arguments and affirm the judgment below.
I. FACTS AND PROCEDURAL HISTORY
On May 19, 2005, at approximately 3:00 p.m., minor and Jacob T. went hiking in the wildland region of Cabazon seeking to reach a waterfall up the mountain. At approximately 7:00 p.m., a fire broke out in a dry grass area adjacent to a dirt road and the dirt hiking trail the two were taking. The minors, who were in close proximity, ran to the nearest home seeking help to put the fire out. Those individuals grabbed shovels and were able to extinguish the fire. The fire consumed an area totaling between 20 by 20 feet to 30 by 30 feet. Captain Matthew Gilbert, a fire investigator for the California Department of Forestry assigned to that area, was able to determine the fire’s point of origin, which was limited to a three by three foot area approximately 10 to 15 feet from the dirt road and 15 feet from the hiking trail. Captain Gilbert made this determination from following burn indicators on the grass and brush in the area which indicated the fire’s direction of travel and from statements made by the minors.
The People filed a Welfare and Institutions Code section 602 petition which, as amended, alleged minor committed the crimes of arson of forest land and possession of a cigarette. (Pen. Code, §§ 451, subd. (c), 308, subd. (b).)
At the contested jurisdictional hearing, Jacob T. testified that he knew minor all his life and that the two are best friends. As the two were hiking, minor lit a cigarette with his lighter and then got rid of the lighter. Thereafter, they began roughhousing, during which the cigarette fell from minor’s hand to the dirt, dislodging the cherry which flew approximately 8 to 10 feet behind the two, landing on the dirt trail after bouncing off Jacob T.’s shirt. Minor picked up the cigarette, which was no longer lit, and placed it in his pocket. As the two continued on, Jacob T. bent over to tie his shoelaces when minor exclaimed, “It’s a fire, Jacob.” They were approximately 5 to 15 feet away from the fire at the time. The fire was two to three feet tall and four feet wide. Minor immediately took off his shirt, went over to the fire, and unsuccessfully tried to put the fire out by laying his shirt on top of the fire and stepping on the shirt. They went over to the nearest home where the inhabitants obtained shovels with which they were able to put the fire out. The firemen arrived 10 to 20 minutes after the fire had been extinguished. The firemen later recovered minor’s lighter. Jacob T. initially did not recollect speaking with Captain Gilbert, although he later recalled answering Captain Gilbert’s numerous questions in the negative and showing him where the fire started.
Captain Gilbert testified that the fire could not have ignited in the manner described by Jacob T. because a cherry falling on the dirt trail 10 to 15 feet away from the fire’s point of origin would not have started it. While a cigarette dropped directly on the area of origin could have started the fire, he found no evidence of a cigarette in the area. Moreover, Captain Gilbert said he found no signs of burning or charring on minor’s shirt, which would have suggested he attempted to put the fire out with it. Both minors initially denied having anything to do with the fire or having seen a vehicle in the area. However, they both later described vehicles in the area, albeit of different types and traveling in different directions. Minor told Captain Gilbert that he had a lighter, but had thrown it away because he did not want to be blamed for the fire. Minor also told Captain Gilbert he had previously intentionally lit three fires; was a pyromaniac; enjoyed touching fire; and knew how to make a Molotov cocktail. However, minor consistently denied responsibility for the instant fire. When questioned by Captain Gilbert, Jacob T. stated “he was not a rat.” At some point after minor left, Jacob T. eventually told Captain Gilbert he wanted to tell the truth, then recounted that he saw minor kneeling in the area where the fire started, then stand up and walk away as the fire lit behind him. The area where Jacob T. saw minor kneeling was the location Captain Gilbert determined the fire originated from. Captain Gilbert was able to exclude other causes for the fire, including debris, a train, and lightening. While he was unable to conclusively rule out a vehicle as the source of the fire, he did not believe the fire had an automotive origin because he did not believe a vehicle had been in the area. He ultimately determined the fire to be of intentional human derivation.
At the close of the People’s case-in-chief, defense counsel moved for dismissal of all allegations pursuant to Welfare and Institutions Code section 701.1. The court dismissed paragraph 2 alleging possession of a cigarette, but denied the motion as to the arson allegation.
Minor thereafter testified that he was hiking with Jacob T. on that day with the intention of reaching the waterfall. He indicated that he did not have a lighter or cigarette with him on that day and that he does not smoke. He witnessed a green van drive down the dirt road adjacent to the area where the fire started and heard a popping sound. He noticed the fire immediately thereafter. At the time, he was approximately 120 feet away from the fire. He did not start the fire or attempt to put it out with his shirt. The two then ran to a house where the occupants grabbed a shovel and extinguished the fire by flipping dirt on it.
The court found the remaining allegation true, reserving disposition to permit the preparation of a probation officer’s report. Minor failed to show for his appointment with probation and it was, thereafter, discovered that minor had run away from his placement. Minor was subsequently arrested and charged with unlawfully taking a vehicle and unlawfully purchasing stolen property. (Veh. Code, §§ 10851, subd. (a)—¶ 1, 496d, subd. (a)—¶ 2.) He admitted the truth of the allegation in paragraph 1 and the court dismissed the allegation in paragraph 2. The court declared minor a ward of the court, placed custody with the probation officer, and ordered him placed in a foster care facility.
II. DISCUSSION
A. Substantial Competent Evidence Supports the Juvenile Court’s Denial of Minor’s Motion to Dismiss
“[Welfare and Institutions Code] section 701.1 is substantially similar to Penal Code section 1118 governing motions to acquit in criminal trials and therefore the ‘rules and procedures applicable to [Penal Code] section 1118 . . . apply with equal force to juvenile proceedings.’ [Citation.]” (In re Anthony J. (2004) 117 Cal.App.4th 718, 727, fn. omitted.) The court must consider the evidence and determine if it is sufficient to sustain a conviction on appeal. (People v. Ainsworth (1988) 45 Cal.3d 984, 1022.) As in an appeal challenging the sufficiency of the evidence to support an adult criminal conviction, we apply the substantial evidence test in reviewing a judgment sustaining a juvenile delinquency petition under Welfare and Institutions Code section 602. (In re Muhammed C. (2002) 95 Cal.App.4th 1325, 1328; In re Ryan N. (2001) 92 Cal.App.4th 1359, 1371.) Under the substantial evidence test, we determine whether any reasonable trier of fact would have found beyond a reasonable doubt that the minor committed the acts alleged in the petition. (Ibid.) Because the judge is the trier of fact, he is to weigh the evidence, consider the credibility of the witnesses and determine whether the People have proved their case beyond a reasonable doubt, prior to defendant putting on a defense. (People v. Partner (1986) 180 Cal.App.3d 178, 183.) We view the entire record as it existed at the time of the motion in the light most favorable to the judgment and consider whether the record contains substantial evidence, which is evidence that is reasonable, credible, and of solid value. (Ibid.) We must assume the truth of every fact the trier could reasonably deduce from the evidence in support of the judgment. (People v. Pensinger (1991) 52 Cal.3d 1210, 1237.)
Rather than looking at the record as a whole and arguing that it, in total, lacks substantial evidence to uphold the juvenile court’s denial of the motion, minor attacks the substantiality of each independent piece of evidence. Initially, it appears, as the People contend, that defendant is attacking the admissibility of each piece of evidence; however, in his reply brief, minor assures us this is not the case. Disregarding whether his arguments constitute a flanking assault around the admissibility issue, we determine that Captain Gilbert’s expert opinion on the cause of the fire was based on sufficiently permissible evidence such that it constitutes substantial evidence to support the judgment below.
Minor attacks the sufficiency of the evidence on the basic ground that Captain Gilbert’s expert opinion testimony is not “substantial evidence,” to support a true finding on the arson charge. More specifically, minor contends that Captain Gilbert improperly testified that the origin of the fire was incendiary in nature, his opinions impermissibly rested on unreliable witness statements, and as an expert, he cannot testify as to the guilt or innocence of the accused.
“[A]n expert may generally base his opinion on any ‘matter’ known to him, including hearsay not otherwise admissible, which may ‘reasonably . . . be relied upon’ for that purpose. [Citations.]” (People v. Catlin (2001) 26 Cal.4th 81, 137.) Indeed, out-of-court statements offered to support an expert’s opinion are not hearsay, because they are not offered for the truth of the matter asserted. Instead they are offered for the purpose of assessing the value of the expert’s opinion. (People v. Thomas (2005) 130 Cal.App.4th 1202, 1210.) “On direct examination, the expert may explain the reasons for his opinions, including the matters he considered in forming them.” (People v. Catlin, supra, at p. 137.) If an expert witness is not present at the scene of a crime while it is taking place, it is not uncommon that he or she will rely on the statements of witnesses who were. (People v. Singh (1995) 37 Cal.App.4th 1343, 1377; Evid. Code, § 804, subds. (a) & (d); cf. Evid. Code, § 804, subd. (b).) This bears on the weight the trier of fact should accord the testimony, not its admissibility. (People v. Singh, supra, at p. 1377.) The trial court is free then to make its own credibility determination. (Ibid.) Information offered to support an expert’s opinion must be reliable. (People v. Gardeley (1996) 14 Cal.4th 605, 618.) “Admission of expert opinion into evidence does not preclude the trier of fact from ‘reject[ing] the expert’s conclusions because of doubt as to the material upon which [they] were based.’ [Citation.]” (People v. Stoll (1989) 49 Cal.3d 1136, 1155.)
“‘However, prejudice may arise if, “‘under the guise of reasons,’” the expert’s detailed explanation “‘[brings] before the jury incompetent hearsay evidence.’”’ [Citations.] In this context, the court may ‘“exclude from an expert’s testimony any hearsay matter whose irrelevance, unreliability, or potential for prejudice outweighs its probative value.”’ [Citation.]” (People v. Catlin, supra, 26 Cal.4th at p. 137.) “While an expert may state on direct examination the matters on which he relied in forming his opinion, he may not testify as to the details of such matters if they are otherwise inadmissible. [Citations.] The rule rests on the rationale that while an expert may give reasons on direct examination for his opinions, including the matters he considered in forming them, he may not under the guise of reasons bring before the jury incompetent hearsay evidence. [Citation.] Ordinarily, the use of a limiting instruction that matters on which an expert based his opinion are admitted only to show the basis of the opinion and not for the truth of the matter cures any hearsay problem involved . . . . [Citations.]” (Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d 757, 788-789; see also People v. Coleman (1985) 38 Cal.3d 69, 91.)
Captain Gilbert was called by the prosecution. He testified as a percipient witness relative to his observations at the scene of the fire and his discussions with Jacob T. and defendant. He also rendered expert testimony as to the cause and origin of the fire.
Before specifically addressing Captain Gilbert’s testimony, we briefly summarize the testimony provided at the dispositional hearing by defendant’s friend, Jacob T. Jacob T. testified that he and minor were messing around and the lit “cherry” of minor’s cigarette came off. The “cherry” fell on the dirt path. He and minor walked on a little bit, and he noticed the fire. He and minor tried to put out the fire. Minor put his shirt over the fire to try and put the fire out. Jacob T. saw minor with a lighter and watched him discard it after using it.
Without considering any information obtained from Jacob T. or minor, by way of out-of-court statements, Captain Gilbert testified that he has investigated the causes and origins of over 100 fires. He was able to identify the area of the origin of the fire based on burn indicators in the grasses and brush. Based on these indicators, he determined the direction the fire traveled. The total fire area was 20 by 20 or 30 by 30 feet. The origin of the fire was 10 to 15 feet from both the road and the dirt path. The fire spread toward the road. A burning cigarette could have caused the fire, but he did not find a cigarette in the area. If the burning tip of a cigarette fell onto the dirt path, as testified to by Jacob T., it is not possible for the fire to start where it did. There was no lightening on the day of the fire. There was no debris burning in the area. Additionally, a train could not have started the fire in that there were no railroad tracks in the area. Minor’s shirt did not appear to be burned or in any way charred, which was inconsistent with it being used in an attempt to put out the fire, as testified to by Jacob T.
As earlier alluded to, an expert appropriately relies on and can testify to matters which are otherwise admissible. Here, minor’s statements to Captain Gilbert were admissions and thus admissible into evidence both as substantive evidence and as a basis for Captain Gilbert’s opinion. Of import is minor’s indication to Captain Gilbert that he was using a cigarette lighter before the fire started and that he disposed of it shortly after the fire, for fear that someone might think that he started the fire. Minor also stated that he had set fires in the past.
Not only can all of the above evidence be properly relied on by Captain Gilbert in forming his opinion that the fire was set intentionally by an open flame device, it is also sufficient to support his opinion. Captain Gilbert’s opinion is sufficiently based on competent evidence so as to constitute “substantial evidence” to support a true finding on the arson charge. In addition to the above facts, Captain Gilbert also based his opinion on statements made by Jacob T. on the day of the fire. While we agree with defendant that the statements of Jacob T. are inadmissible hearsay, they nonetheless have sufficient indicia of reliability so as to be used to support an expert opinion.
Jacob T. told Captain Gilbert that he saw defendant kneeling down in the area of the origin of the fire and then stand up and walk away, with the fire behind defendant. Jacob T. saw the fire start as defendant walked away from it. These statements are clearly of a nature that an expert could reasonably rely on. On direct, Jacob T. was reticent to offer testimony against his friend. Jacob T. was an eyewitness to the events and the statements attributed to him were made on the day of the incident. His statements implicating minor were made only after he was separated from minor, hence, lessening feelings of guilt he may rationally have felt from incriminating his best friend. Likewise, they were made after he indicated he wished to speak the truth. Finally, as we note below, this “theory” was the only one which was consistent with the physical evidence discovered at the scene, leading to the rational inference that it was the truth.
Minor similarly maintains that because Captain Gilbert failed to assert on the stand that witness statements are the type of information fire investigators reasonably rely on and such cannot be presumed, the court was required to discount his opinion to the extent it was so based. We disagree. We think it self-evident that an investigator examining the cause of an incident such as the one at issue in this case would ascribe at least a passing interest in what those who were actually present during the occurrence could recount. Defendant’s citations for a contrary proposition are unavailing.
In Smith v. ACandS, Inc. (1994) 31 Cal.App.4th 77, the court held that an expert witness’s reliance on old, undated, black and white photographs, which were apparently not even of the building in question, were too speculative and suspect a basis to permit the expert to testify to the asbestos levels in the air of the subject building. (Id. at p. 93.) Here, we have Captain Gilbert relying on the statements of a percipient witness, albeit a 12-year-old boy, to the incident shortly after its occurrence. The latter instance is obviously and by far the more reliable of the two. Likewise, in People v. Hayes (1985) 172 Cal.App.3d 517, the court found an expert’s opinion based on the self-serving statement of the defendant himself inadmissible as unreliable. (Id. at p. 527.) Here, to the extent that Captain Gilbert relied on minor’s statements, they were certainly not self-serving. Moreover, Captain Gilbert clearly relied more fully on the statements of Jacob T. Minor, however, suggests that Jacob T.’s statements were likewise self-serving in that he was also a suspect of the arson and his statements deflected suspicion from himself. While this is true, it must also be noted that Jacob T. initially refused to implicate minor, his best friend, until after minor left the scene. Moreover, on the stand, Jacob T. returned to his original theory that minor set the fire accidentally. Thus, gauged within the context of all Jacob T.’s statements and testimony, it appears reasonable to conclude that he was primarily concerned with protecting his friend rather than shielding himself from suspicion. Therefore, Jacob T.’s implication of minor appears rationally credible, particularly as it more fully matches the physical evidence than any other story he presented.
Minor additionally maintains that “decisional law precludes fire officers investigating the cause of a fire . . . to rest their opinions on the hearsay statements of parties and third party observers as these statements are not a reliable basis for the investigator’s opinion.” However, all of minor’s cited authorities for this proposition predate the operative date of Evidence Code section 804, which specifically permits an expert to base his opinion “in whole or in part upon the opinion or statement of another person . . . .” (Evid. Code, § 804, subd. (a).) Moreover, the express purpose of that statute was “to provide protection to a party who is confronted with an expert witness who relies on the opinion or statement of some other person” by permitting that party to cross-examine the individual providing the opinion or statement. (Cal. Law Revision Com. com., 29B pt. 3 West’s Ann. Evid. Code (1995 ed.) foll. § 804, p. 101.) Here, minor did cross-examine Jacob T. Moreover, courts have specifically recognized that expert opinion may be based on facts not admitted into evidence, even hearsay, so long as it is reliable. (People v. McDaniels (1980) 107 Cal.App.3d 898, 905; People v. Mazoros (1977) 76 Cal.App.3d 32, 44; People v. Conley (1968) 268 Cal.App.2d 47, 59.)
1. Captain Gilbert’s Opinion That the Car Did Not Start the Fire Was Supported by Substantial Evidence
Minor contends that in order for the juvenile court to find the arson allegation true, all other potential causes for the fire must be excluded. Hence, because Captain Gilbert was unable conclusively to exclude an automotive origin for the fire, substantial evidence failed to support the court’s finding. However, minor fails to cite any cognizable, binding authority for such a proposition. Indeed, such a rule would run afoul of the negative proof fallacy. Rather, all that is required is that the People provide sufficient evidence to permit a reasonable trier of fact to find the allegation against minor true beyond a reasonable doubt. (In re Muhammed C., supra, 95 Cal.App.4th at p. 1328.)
Nonetheless, minor maintains that Captain Gilbert’s ultimate conclusion regarding the fire’s origin must be discounted because it relied solely on the minors’ statements, without any underlying physical support. (Behr v. County of Santa Cruz (1959) 172 Cal.App.2d 697, 709.) Behr is distinguishable from the instant case. There, the expert witness, the Chief Ranger, stated “that there was no physical evidence from which he could determine the origin of the fire.” (Id. at p. 708.) His testimony that the area around the skiploader was the origin of the fire was based solely on his self-admitted assumption, not upon any physical evidence. (Id. at p. 709.) Likewise, other witnesses testified as to several conflicting potential sources of the fire. (Ibid.) Here, Captain Gilbert testified he was able to identify the fire’s point of origin when he “followed burn indicators which [he] observed in the grasses in the area, and [he] also observed indicators on a piece of brush in the area which indicated the direction the fire had traveled . . . .” Likewise, the fire’s point of origin was located some 10 to 15 feet from the road and it spread from that point towards the road rather than away from it. Furthermore, the firefighters found minor’s lighter at the scene of the fire. Thus, physical evidence which Captain Gilbert observed at the scene supported his determination of the fire’s origin.
Moreover, both the statements made at the scene and the lack of statements to the contrary reinforced the physical evidence Captain Gilbert used in making his determination. No one testified during the People’s case-in-chief that a car was seen in the immediate area of the fire around the time of its ignition, including Jacob T. Captain Gilbert noted that minor indicated he saw a green car driven by an elderly woman in the immediate vicinity of the fire’s origin immediately before it started; however, neither minor nor Jacob T. had said anything about seeing a car in the vicinity to either firefighter Gil or Officer Cabral before Captain Gilbert’s arrival. Besides, contrary to confirming minor’s story, Jacob T. had thereafter said he saw a different type of vehicle traveling in the opposite direction. Furthermore, none of the firefighters or officers who had to make their way out to the scene of the fire, which was in a wildland region, nor any of the individuals who helped put the fire out, indicated that they had seen a vehicle in the area. The obvious inference from the aforementioned facts is that the minors were not being forthright about a vehicle being in the area so as to avoid being held responsible. Furthermore, in Captain Gilbert’s opinion, though he could not completely rule it out, an automotive origin for the fire was unlikely because he did not believe a vehicle had been in the area and because he had determined the fire started from a lighter or similar device. Thus, substantial evidence supported both Captain Gilbert’s expert opinion on the source of the fire and the court’s reliance on that opinion in making its findings.
2. To the Extent Captain Gilbert Explicitly Testified That Minor Intentionally Set the Fire, His Testimony Was Invited by Minor
A witness, expert or otherwise, cannot express an opinion concerning the guilt or innocence of the defendant. (People v. Torres (1995) 33 Cal.App.4th 37, 46-47.) The reason for “this rule is not because guilt is the ‘ultimate issue of fact’ to be decided by the jury[;]” it is because “they are of no assistance to the trier of fact. To put it another way, the trier of fact is as competent as the witness to weigh the evidence and draw a conclusion on the issue of guilt.” (Id. at p. 47.)
Minor contends that Captain Gilbert impermissibly testified that minor intentionally set the fire. Nonetheless, minor fails to indicate precisely where in the record Captain Gilbert ostensibly testifies to this. (Cal. Rules of Court, rule 8.204(a)(1)(C); In re S.C. (2006) 138 Cal.App.4th 396, 406-407 [appellate court not required to search record for facts supporting appellant’s argument].) The closest Captain Gilbert came to indicating that minor intentionally lit the fire was when he responded affirmatively to defense counsel’s question, “And you chose to believe [Jacob T.’s] final theory; is that right?” Gilbert answered, “I did.” That “theory” was what Jacob T. had reported to Captain Gilbert was the truth, i.e., that he saw minor kneeling at the precise location of the fire’s origin with a lighter immediately before the fire started and wherefrom he, thereafter, walked away after it erupted.
To the extent that this testimony equates to an opinion concerning the guilt or innocence of the defendant, it was invited error because it came out initially on cross-examination. (People v. Wickersham (1982) 32 Cal.3d 307, 330, disapproved on other grounds in People v. Barton (1995) 12 Cal.4th 186, 201.) Additionally, and as discussed above, even in the absence of testimony by Captain Gilbert that minor set the fire, substantial evidence supports both Captain Gilbert’s opinion that the fire was intentionally lit with an open flame and the trier of fact’s conclusion that it was minor who set it.
B. Jacob T.’s Statement That He Was Not a Rat Was Properly Admitted Under the Prior Inconsistent Statement to the Hearsay Rule
A trial court has broad discretion in determining the admissibility of evidence and its evidentiary rulings will only be overturned on appeal when it has abused that discretion. (People v. Martinez (2000) 22 Cal.4th 106, 120.) A witness’s trial testimony must be materially inconsistent with his prior statement for the statement to be admissible under the prior inconsistent statement exception to the hearsay rule. (People v. Arias (1996) 13 Cal.4th 92, 153.) If the witness’s testimony is ambiguous, it cannot serve as the basis for impeachment with a specific prior statement. (People v. Thomas (1978) 20 Cal.3d 457, 467-468, disapproved on other grounds in People v. Thompson (1980) 27 Cal.3d 303 and People v. Tassell (1984) 36 Cal.3d 77.)
Minor maintains the court erroneously admitted Jacob T.’s out-of-court statement to Captain Gilbert under the prior inconsistent statement exception to the hearsay rule. (Evid. Code, §§ 1235, 1200.) He contends Jacob T.’s statement to Captain Gilbert that he “was not a rat” was not inconsistent with his testimony at the contested hearing. The People counter that it was. We agree with the People. Jacob T.’s testimony at the hearing consistently and unambiguously indicates that he never talked to Captain Gilbert at all, simply answering all Captain Gilbert’s questions in the negative. Thus, Captain Gilbert’s testimony that Jacob T. informed him he “was not a rat,” was inconsistent with Jacob T.’s prior testimony and, hence, admissible under the prior inconsistent statement exception to the hearsay rule.
The statement was elicited and eventually admitted in the following colloquy between counsel, the court, and Captain Gilbert:
“[People]: Before the minor left, what was [Jacob T.’s] demeanor like?
“[Captain Gilbert]: He was—frequently said he was not a rat and didn’t want to—did not know
“[Defense Counsel]: Objection. Move to strike. It’s hearsay and irrelevant.
“[People]: I’m impeaching the witness’[s] statement that he did not say he was not a rat.
“[The Court]: I don’t think you ever asked that question.
“[Defense Counsel]: I don’t remember that question.
“[People]: I think he answered that question.
“[The Court]: I don’t remember that question at all.
“[People]: Okay. Then I’m impeaching my witness’[s] statement that he only said, ‘No, no, no,’ to the officer.
“[The Court]: That you did ask him, that he did say.
“[Defense Counsel]: That was specifically in the context of specific questions that were put to him as opposed to whether knowledge was being suggested, things were simply suggested sounds like a spontaneous statement.
“[The Court]: I’ll allow him to do this. Go ahead. [¶] . . . [¶]
“[People]: What did [Jacob T.] say to you?
“[Captain Gilbert]: He said to me at the end
“[People]: Before [minor] left?
“[Captain Gilbert]: He had said he was not a rat.
“[People]: Have you heard the term ‘rat’ used in that context before?
“[Captain Gilbert]: I have.
“[People]: What does it mean to you?
“[Captain Gilbert]: Not going to tell on one of your friends.
“[People]: So a rat is one who tells on a friend?
“[Captain Gilbert]: Yes.”
Here Captain Gilbert indicated that, among other things, Jacob T. repeatedly informed him he was not a rat. This was inconsistent with Jacob T.’s prior testimony that he did not say anything to Captain Gilbert other than “no.” Initially when asked if he remembered speaking to Captain Gilbert, Jacob T. replied that he did not. Later, the following colloquy ensued:
“[People]: Did you ever say to him that you wanted to tell him the truth about what happened?
“[Jacob T.]: No. . . .
“[People]: But you said you do remember speaking to the Captain?
“[Jacob T.]: When me and him were sitting on the floor, he was talking to us.
“[People]: And when you were talking to him, did you tell him that you wanted to tell him the truth?
“[Jacob T.]: I didn’t really say anything.
“[People]: Did you tell him that you didn’t want to get in trouble for what [minor] did?
“[Jacob T.]: I never said anything like that. I was sitting there.
“[People]: What did you say to the Captain?
“[Jacob T.]: I was just like, he kept on saying, [‘]Did you start the fire? Did you start the fire?[’] I’m like, [‘]No, no, no.[’]
“[The People]: And all you said to the Captain was, No, no, no?
“[Jacob T.]: Yeah. He kept on saying I started the fire.
“[People]: Did you go back with the Captain to the place where the fire started?
“[Jacob T.]: No.
“[People]: Are you sure?
“[Jacob T.]: Well, there was—when me and [minor] showed him where it was at and things like this, what happened, we were, [‘]Yeah, this is where it was, where all the burnt stuff was.[’] [¶] . . . [¶]
“[People]: And after [minor] left, did you speak to the Captain again?
“[Jacob T.]: Huh-uh, I was in the car.
“[People]: What happened after [minor] left?
“[Defense Counsel]: That ‘huh-uh’ sounded like a no, your Honor. I’ll stipulate it was a no.
“[The Court]: Okay. Go ahead.” (Italics added.)
Thus, Jacob T. testified that the only thing he told Captain Gilbert was where the fire started, and this occurred prior to minor’s departure. Jacob T. indicated that he never spoke to Captain Gilbert otherwise, unless it was to answer in the negative all the Captain’s question. Therefore, Captain Gilbert’s testimony that Jacob T. told him he was not a rat was inconsistent with his prior testimony and was properly admitted pursuant to that exception to the hearsay rule. (Evid. Code, § 1235; see People v. Green (1971) 3 Cal.3d 981.)
III. DISPOSITION
The judgment is affirmed.
We concur: Hollenhorst Acting P.J., Richli J.